Tuesday, October 02, 2007

Et tu Zuma?

The Constitutional Court today rejected Schabir Shaiks' leave to appeal his conviction and sentence on the charges of corruption and fraud on which he was convicted in the Durban High Court. In a decision significantly not signed by an individual judge but by "The Court", the Court argued that there was no prospect of a successful appeal on the ground that Mr. Shaik had not received a fair trial.


The defense had a high mountain to climb because it had not raised the constitutional issues in either the High Court or the Supreme Court of Appeal. In the Constitutional Court the most important argument raised by the defense was that Mr. Shaik had not received a fair trial because he was charged on his own and not together with Mr Jacob Zuma.

The Court reiterated that the right to a fair trial was a substantive right that went beyond the rights specifically enumerated in section 35(3) of the Constitution and in an implicit rebuke of the "Stalingrad" legal strategy employed by Mr. Jacob Zuma's lawyers stated that:

It is also clear that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires: "fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime."
This seems to suggest that the Court will not easily entertain technical complaints masquerading as high constitutional principle and that the accused would have to show that he or she was really fundamentally prejudiced by the actions of the state before there would be any chance of declaring a trial unfair and unconstitutional.


In this case, Mr Shaik's lawyers had not shown that the applicant had suffered any prejudice. Mr. Zuma was asked to testify on behalf of the accused but he had declined (something I did not know before), but it cannot be said that this failure to testify had prejudiced the accused because it is impossible to predict what would have happened had the parties been charged together.

On a symbolic level this judgment reflects badly on Jacob Zuma (but his supporters seem immune to any moral opprobrium heaped on him) but I am not sure it is very significant from a legal perspective. It does not tell us anything about the legal issues most pertinent to the case and the court did not consider the non-constitutional arguments about the interpretation of the facts or the law.

The fact that the Court had decided not to allow one judge to sign his or her name to the judgment is very revealing though. This has only happened before in a hand full of highly charged political cases (including the floor crossing case and the Treatment Action Campaign case). It means the Court is acutely aware that the case would be scrutinised in the light of the succession race and the possibility of charges being laid against Mr. Jacob Zuma.

It reminds us of how poisonous the atmosphere has become in the run-up to the ANC December conference. Everyone is under suspicion, every judge a possible enemy. These are dark days for our democracy indeed.

6 comments:

Anonymous said...

I'm not sure the court was as concerned with the succession debate as you imply. It is true that politically sensitive cases have been written by The Court, but so are almost all the short judgments dismissing leave to appeal. This was, ultimately, simply a judgment dismissing leave to appeal.

I think what is more depressing is that they spent 2 days of hearings and 40 odd pages explaining why Schabir's arguments must fail while most litigants don't get a hearing and get only a one line order. It looks like the Court affords better treatment to the politically powerful than the ordinary man on the street. I guess you could defend that, from a political realist point of view, but it doesn't seem to be in line with the right to be treated equally before the law.

Anonymous said...

Quite an apposite title for the discussion. Indeed, the fact that Zuma declined to testify for the defence in the Shaik matter could have had Shaik say: "Et tu Buti?" I was wondering whether outsiders (I know a trial court will never take cognisance of that fact if Zuma is ecventually charged - we will in any case have to wait and see what happens in the Mbeki/Pikoli saga) could not interpret Zuma's failure to testify as an implied admission of guilt. Is this not also why he and his defence lawyers are doing their utmost to torpedo the NPA's further investigations against him to try and build a stronger case? We are living in interesting (and worrying) times indeed, and I wonder whether the Lady with the Scales will not have a wry smile on her face if Zuma's possible trial is stopped (worst case scenario) or postponed (still not good) and he is elected as the ANC's (and South Africa's) next President. In such a position he will (in the light of the Mbeki/Pikoli precedent) have the power to fire the NPA's boss; to stop prosecutions against him; to change the Constition and the law (it would appear that the ANC members in Parliament will vote aye for whatever their leaders say or wish, regardless of their own moral - if any - thoughts); to grant presidential pardon to Schabir Shaik (and others); to ...
Are such fears realistic in the light of the ANC electorate's primary indications that they will elect Zuma come what may and that they will believe and keep on believing in his 'innocence' come what may? (The retired Kaders have already indicated their support, as did the Youth League, and some other members of the tri-partheid alliance.

hex said...

Please don't worry so much, my little anony-mouses: Uncle Thabo will now pull out all the stops (and I mean all of them) to stop JZ from becoming President. We all know how crafty he can be.

Clara said...

Of late
We've had a lot
on our plate.
First Mantogate
Then Pikoligate
Selebigate,Zumagate,
Thabogate.
Next up: Democracygate.
Too late?

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12331432 said...

the courts were correct in dismissing the leave to appeal, only sad part seems to be that our President always seems to sneak past the firing line...